B. Petition to the Supreme Court of the United States for Writ of Habeas Corpus

Erhard Milch,

Petitioner vs. United States of America

Nuernberg, 2 May 1947

IN THE SUPREME COURT OF THE UNITED STATES

Application for Leave to File Petition for Writ of Habeas Corpus

Petition for Writ of Habeas Corpus

I, the undersigned Erhard Milch, have been charged in Case No. II before the Military Court No. II Nuernberg of illegally, deliberately, and intentionally having committed war crimes and crimes against humanity, as defined in Control Council Law No. 10 Article II, viz. the following:

Count One of the Indictment. War crimes, including murder, slave labor, deportation of the civilian population for slave labor, cruel and inhuman treatment of foreign workers, and the employment of prisoners of war by force and duress in actions connected with warfare.

Count Two of the Indictment. War crimes, including murder, whereby involuntary victims were exposed to sub-pressure and cold, experiments resulting in torture and death.

Count Three of the Indictment. Crimes against humanity, including murder and the unlawful acts listed in counts one and two of the indictment, committed against Germans and foreigners.

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I have been acquitted on count II of the indictment and found guilty by the sentence passed by the Military Court II on 16/17 April 1947 in respect of counts I and III of the indictment, and am condemned therefore to lifelong imprisonment.

I hereby make application for the sentence of the Military Court II passed on 16/17 April 1947 to be completely quashed, as being inadmissible according to Articles 63 and 64 of the Geneva Convention of 1929.

Substantiation

Decree No. 7 of the Military Government of Germany concerning the constitution and competency of certain military courts, constitutes a violation of Article 63 of the Geneva Convention of 1929, insofar as Decree No. 7 is applied to prisoners of war as well, and in its Article II appoints special courts for passing sentences on prisoners of war. Article 63 of the Geneva Convention of 1929 lays down, “Sentence against a prisoner of war may only be passed by the same courts and according to the same procedure as a sentence against persons belonging to the fighting forces of the country where he is a prisoner”. A field marshal is equal to a five-star general of the United States of America. The present Court consisted of three judges, of which not one has the military rank which I have. It therefore does not correspond to the court which, according to the laws of the United States of America, could pass sentence on a five-star general. The authority of the present Court is, however, expressly recognized by me.

Furthermore, Decree No. 7 of the Military Government of Germany constitutes a violation in Article XV of Article 64 of the Geneva Convention of 1929, because Article XV declares the sentence of the court in finding the defendant guilty, to be final and incontestable. Article 64 of the Geneva Convention of 1929 stipulates that prisoners of war must be allowed to employ the same legal means against a verdict as are granted to members of the fighting forces

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of the country where they are detained.

The rules laid down by the Geneva Convention of 1929 represent compulsory international law of a universal character and cannot be altered either by a signatory power alone or by an agreement between several signatory powers, but only by the consent of all signatory powers. In no case may they be altered by a decree of Military Government, not even by a decree of the Control Council. The rights of a prisoner of war, which are based upon the regulations of the Geneva Convention of 1929, can neither be waived nor cancelled.

The violation of the regulations of the Geneva Convention has now come about with the passing of sentence and the now existing restrictions placed in the way of contesting the verdict, not already by the trial as such.

I am still a prisoner of war. I have not been released from captivity. I am therefore still under the protection of the Geneva Convention, the same as before.

The violation of the Geneva Convention is all the more serious, in that I am still a prisoner of war of the British. True, the defense counsel was told at the beginning of the trial in reply to an express question, that my transfer to the jurisdiction of the United States of America was already effected, but it was not proved until the conclusion of the passing of sentence. That should have been absolutely necessary.

After the serving of the indictment and the beginning of the actual trial, an attempt was made on 4 January 1947 to gain my veiled consent to my release without saying anything, whereby I was asked to accept release money. On the receipt, however, I expressly noted, “Without recognizing my release”. I declared that release by American officers was not

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permissible at that moment and moreover a German field marshal could not be released in any case under existing German law.

After this explanation on my part, the American major conducting the proceedings revealed to me that another separate release proceeding would have to be carried out against me then.

Thereby it is clear that I am still a prisoner of war today. At any rate, I was when the trial begun and therefore in accordance with Article 60 of the Geneva Convention the protecting power for German prisoners of war, viz., Switzerland, should have been informed of the proceedings. This too constitutes a violation of the Geneva Convention of 1929. If the public prosecution authorities, however, were to refer to the fact that I was released after the trial had begun, then they should be confronted with the assertion that such a release is invalid. It would represent nothing but an evasion of the regulations of the Geneva Convention of 1929. I was not set at large for a single day. But that is demanded by a release from captivity as a prisoner of war. A release from captivity as a prisoner of war while maintaining captivity would be a release in fraudem legis.

Therefore the sentence constitutes a violation of international law. At the same time this violation is also a violation of the Habeas Corpus Act. None, under whatever pretext, may be deprived of the rights of legal proceedings and of a legal judge.

I therefore request the Supreme Court in Washington to examine whether the Decree No. 7 of the Military Government of Germany may be applied in my case, and whether, with due regard to the regulations of Article 60-65 of the Geneva Convention, the present Military Court II

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Nuernberg was in a position to pass sentence on me.

Furthermore I enclose a copy of my petition to the Governor-General [Military Governor of U. S. Zone of Occupation].

[Signed] Erhard Milch

[Note: Another petition with the same text was submitted to the United States Supreme Court by Dr. Bergold, Defense Counsel.]